College students and others for years have been the target of copyright-infringement claims from the recording industry for allegedly downloading and making available copyright-protected music files. Could they now be open to lawsuits for uploading, or even watching, copyright-protected video clips from sources such as The Daily Show on the popular video-sharing web site YouTube?
That’s a legitimate question raised by a judge’s decision last week in a $1 billion copyright-infringement lawsuit against YouTube, privacy advocates warn. Dismissing any privacy concerns, the judge ordered YouTube to disclose who watches which video clips and when.
U.S. District Judge Louis L. Stanton authorized full access to the YouTube logs after Viacom Inc. and other copyright holders argued that they needed the data to show whether their copyright-protected videos are more heavily watched than amateur clips.
The information would not be released publicly but disclosed only to the plaintiffs, and it would include less specific identifiers than a user’s real name or eMail address.
Even so, lawyers for Google Inc., which owns YouTube, said producing 12 terabytes of data–equivalent to the text of roughly 12 million books–would be expensive, time-consuming, and a threat to users’ privacy.
The database includes information on when each video gets played, which can be used to determine how often a clip is viewed. Attached to each entry is each viewer’s unique login ID and the Internet Protocol, or IP, address for that viewer’s computer.
Stanton ruled that the plaintiffs had a legitimate need for the information and that privacy concerns are speculative.
He rejected a request from the plaintiffs for Google to disclose the source code–the technical "secret sauce"–powering its market-leading search engine, saying there’s no evidence Google manipulated its search algorithms to treat copyright-infringing videos differently.
The court has yet to rule on Google’s request to question comedians Jon Stewart and Stephen Colbert of Viacom’s Comedy Central.
Viacom is seeking at least $1 billion in damages from Google, saying YouTube has built a business by using the internet to "willfully infringe" copyrights on Viacom shows, which include Comedy Central’s The Daily Show with Jon Stewart and Nickelodeon’s SpongeBob SquarePants cartoon.
The lawsuit was combined with a similar case filed by a British soccer league and other parties.
Together, the plaintiffs are trying to prove that YouTube has known of copyright infringement and can do more to stop it–a finding that could dissolve the immunity protections that service providers have when they merely host content submitted by their users. That could have a chilling effect on the future of Web 2.0 applications, some educators fear. (See "YouTube lawsuit tests copyright law.")
Now, with Stanton’s latest ruling, some educators and privacy advocates also worry of a possible backlash against internet users who have posted or even just viewed copyright-protected video clips online–not to mention those who have posted or viewed other controversial content.
In a statement, Google said it was "disappointed the court granted Viacom’s overreaching demand for viewing history. We are asking Viacom to respect users’ privacy and allow us to anonymize the logs before producing them under the court’s order."
Google did not say whether it would appeal the ruling or seek to narrow it.
Though Google said giving the plaintiffs access to YouTube viewer data would threaten users’ privacy, Stanton referred to Google’s own blog entry in which the company argued that the IP address alone cannot identify a specific individual.
Stanton’s ruling made only passing reference to a 1988 federal law barring the disclosure of specific video materials that subscribers request or obtain.
Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation, said Stanton should have considered that law along with constitutional free-speech rights, including a right to read or view materials anonymously.
He said a user’s ID can sometimes include identifying information, such as a first initial and last name.
And if Viacom suspects that an individual has violated copyright law by posting a copyright-protected video clip to YouTube, what’s to stop the company from filing a "John Doe" lawsuit seeking that person’s identity, much like the Recording Industry Association of America (RIAA) has done with college students and others suspected of downloading and sharing music online?
"The privacy fallout of this ruling is spectacular," writes blogger Michael Arrington for the web site TechCrunch. "Judge Stanton … clearly doesn’t understand that far more data [are] being transferred than [are] necessary to comply with Viacom’s core stated concern, which is to understand the popularity of copyright infringing versus non-infringing material."
Arrington continues: "Viacom has asked for far more data than that, and there’s only one use for [those] data: to sue individual users (or shake them down via the threat of lawsuit, which has been perfected by the RIAA) who have watched a few music videos or television shows on YouTube."
For its part, Viacom said it isn’t seeking any user’s identity. The company said any data provided "will be used exclusively for the purpose of proving our case against YouTube and Google [and] will be handled subject to a court protective order and in a highly confidential manner."
This is not the first time Google has fought the disclosure of user information it had been stockpiling. While gathering evidence for a case involving online pornography, the U.S. Justice Department subpoenaed Google and other search engines for lists of search requests made by their users.
After Google resisted, a federal judge ruled that Google was obliged to turn over only a sample of web addresses in its search index, not the actual search terms requested.
Electronic Frontier Foundation